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kenya<br />
Reaching a turning point<br />
<strong>Social</strong> Development Network<br />
Pr<strong>of</strong>. Edward Oyugi, Philip Thigo, John Kipchumbah,<br />
Ayoma Matunga<br />
United Nations Millennium Campaign (UNMC)<br />
Charles Abugre<br />
Kenya Treatment Access Movement (KETAM)<br />
James Kamau<br />
SEATINI<br />
Oduor Ong’wen<br />
KENDREN<br />
Wahu Kaara<br />
Daraja-Civic Initiatives Forum<br />
Esther Nzioka<br />
CLAN- Migori<br />
William Oloo Janak<br />
Reality <strong>of</strong> Aid<br />
Vitalice Meja<br />
In December 2010, following years <strong>of</strong> struggle for<br />
true sovereignty and citizenship, the people <strong>of</strong> Kenya<br />
managed to negotiate a new social contract in the<br />
form <strong>of</strong> a ground-breaking Constitution. The path to<br />
the 2010 Constitution has been neither straight nor<br />
smooth, with constitutional reform a major issue<br />
since the country gained independence. Attempts to<br />
amend the 1963 Constitution intensified in the late<br />
1990s and early 2000s, but succeeded only after<br />
the outbreak <strong>of</strong> post-election violence in early 2008<br />
and the intervention <strong>of</strong> the African Union through<br />
a mediation team headed by then UN Secretary-<br />
General K<strong>of</strong>i Annan. The Constitution was presented<br />
to the Attorney General on 7 April 2010, <strong>of</strong>ficially<br />
published on 6 May 2010 and put to a referendum on<br />
4 August 2010. Approved by 67% <strong>of</strong> Kenyan voters,<br />
it was promulgated on 27 August 2010.<br />
This new Constitution promises a transformative<br />
agenda that, if fully realized, will bring about a new<br />
political-economic framework in which the country<br />
could break from the neo-patrimonial system (in<br />
which patrons use State resources to secure the loyalty<br />
<strong>of</strong> clients in the general population) bequeathed<br />
to them by neo-colonialism. Its four transformative<br />
features are: an expanded Bill <strong>of</strong> Rights and a promise<br />
to address inequality and marginalization; 1 farreaching<br />
devolution <strong>of</strong> public authority; a chapter on<br />
leadership and integrity founded on the principles <strong>of</strong><br />
selfless public service, discipline and accountability;<br />
1 The Bill <strong>of</strong> Rights goes beyond the usual political and civic<br />
rights to include economic, social and cultural rights. New<br />
Constitution <strong>of</strong> Kenya, Nairobi, 2010, p. 4.<br />
In 2010, after many years <strong>of</strong> struggle, Kenyans finally managed to negotiate the groundbreaking 2010<br />
Constitution. Its focus on basic rights, participation, accountability to citizens and public service provides the<br />
basis for defining the role <strong>of</strong> the State as central to constructing an economy that fulfils the promise <strong>of</strong> equity,<br />
participation and basic social and economic rights. By making popular participation and service delivery the<br />
core politics <strong>of</strong> sustainable development, the people will transform themselves into a new revolutionary force.<br />
In environmental terms, the new Constitution is also a step forward since it establishes the right <strong>of</strong> every Kenyan<br />
to a clean and healthy environment.<br />
Basic Capabilities Index (BCI)<br />
BCI = 77<br />
Births attended<br />
44<br />
100<br />
0<br />
78<br />
Children reaching<br />
5th grade<br />
100 100<br />
National reports 130 <strong>Social</strong> <strong>Watch</strong><br />
Surviving under-5<br />
and a value system based on the sovereignty <strong>of</strong> the<br />
people and a culture <strong>of</strong> human rights.<br />
If properly implemented, the Constitution will<br />
<strong>of</strong>fer Kenyans a unique opportunity to obtain straight<br />
answers to two long-standing questions, hitherto the<br />
source <strong>of</strong> intermittent and violent sub-national conflicts:<br />
what is the concrete meaning <strong>of</strong> being a Kenyan<br />
citizen and what does the State <strong>of</strong>fer to the majority <strong>of</strong><br />
the people? The 2010 Constitution’s focus on basic<br />
rights, participation, accountability to citizens and<br />
selfless public service also provides the context for<br />
defining the role <strong>of</strong> the State as central to constructing<br />
an economy that fulfils the promise <strong>of</strong> equity, participation<br />
and basic social and economic rights.<br />
This will enable Kenya to break free from the<br />
stranglehold <strong>of</strong> neo-liberal policies imposed through<br />
various means including conditions for development<br />
aid, political arm-twisting, asymmetric multilateral<br />
obligations and the collusion <strong>of</strong> local interests with<br />
foreign agendas. It will also help to address the issue<br />
<strong>of</strong> widespread corruption. For example, recent social<br />
audits reveal that the benefits <strong>of</strong> both the Local Authorities<br />
Trust Fund (LATF) and the Constituency Development<br />
Fund (CDF) hardly reached their primary<br />
stakeholders. Most <strong>of</strong> the funds earmarked for them<br />
have been embezzled by the members <strong>of</strong> Parliament<br />
and their cronies who were supposed to manage<br />
these resources on behalf <strong>of</strong> citizens.<br />
What the new Constitution has to <strong>of</strong>fer<br />
The new Constitution presents a holistic and rightsbased<br />
approach that guarantees equitable social development<br />
rooted in the productive capacities <strong>of</strong> the<br />
society as an alternative to the current paradigm that<br />
is based on rent seeking. It implies a new political<br />
economy based on popular participation not only<br />
92<br />
Gender Equity Index (GEI)<br />
GEI = 58<br />
100<br />
0 14<br />
Empowerment<br />
100<br />
86<br />
75 100<br />
Education<br />
Economic activity<br />
in the mechanics <strong>of</strong> politics but also in the shaping<br />
<strong>of</strong> the economy and the sharing <strong>of</strong> the benefits <strong>of</strong><br />
value-added production. Such a political economy<br />
will seek to rebalance corporate sector interests with<br />
the social development objectives <strong>of</strong> citizens and the<br />
State’s obligation to provide a social protection floor<br />
for all sectors <strong>of</strong> society. It suggests a new State that<br />
is both democratic and developmental.<br />
A democratic developmental State will separate<br />
the public and the private domains so that those<br />
who provide public services cannot at the same time<br />
be in the private sector. This is essential to avoid<br />
conflicts <strong>of</strong> interest and for the State to balance the<br />
public good with the pr<strong>of</strong>it motive. A democratic<br />
developmental State will steer the economy away<br />
from unproductive rent seeking into value-added<br />
production based on building the productive capacities<br />
<strong>of</strong> its citizens. It will intervene to ensure that<br />
pr<strong>of</strong>its arise from productive activity and innovation<br />
and in this process not only redirect but also reshape<br />
them. It will focus on employment creation, not just<br />
aggregate growth, and will ensure that the growth<br />
process is itself distributive and aimed at enhancing<br />
well-being. It will use taxation as its main source <strong>of</strong><br />
financing development, as a tool for redistribution<br />
and redirection <strong>of</strong> incentives and as a means <strong>of</strong> enhancing<br />
citizen agency.<br />
The new Constitution also seems propitious<br />
regarding environmental issues. For example,<br />
Section 42 <strong>of</strong> Part 2 (“Rights and fundamental<br />
freedoms”) states: “Every person has the right to<br />
a clean and healthy environment, which includes<br />
the right a) to have the environment protected<br />
for the benefit <strong>of</strong> present and future generations<br />
(…), and b) to have obligations relating to the<br />
environment…”, while article 69 states that “the